CRIMINAL JURISDICTION

The Spousal Privilege in Criminal Cases

By: Houston Criminal Defense Attorney John Floyd and Mr. Billy Sinclair

A potential client of the John T. Floyd Law Firm recently asked if his wife could be compelled to give testimony against him concerning possible criminal conduct. Like any answer to most legal questions, our answer to the potential client was “depends upon the circumstances.”

The United States Supreme Court in 1934 held that “The basis of the immunity given to communications between husband and wife is the protection of marital confidences, regarded as so essential to the preservation of the marriage relationship as to outweigh the disadvantages to the administration of justice which the privilege entails.” Wolfe v. United States, 291 U.S. 7, 14 (1934).

Five years ago prosecutors in Pacific County, Washington found themselves confronted with a “classic” husband and wife privilege situation. Tracy Johnson, a reporter with the Seattle Post-Intelligencer, wrote in a January 2005 story that David and Michelle Knotek lived in a “little red farmhouse” in rural Raymond, Washington. The couple had a 19-year-old nephew and two “boarders” living with them. All three eventually turned up missing. The Knotek’s daughters, reported Johnson, had “disjointed memories” of their parents beating the nephew and the boarders about the head, forcing them to take medication, and making them do outdoor chores in the extreme cold without any clothes on.

Prosecutors began talking to the daughters after the body of one of the boarders turned up in the Knoteks’ back yard. Forensic experts could not determine a cause of death and blood found in the Knoteks’ farmhouse could not be identified. The bodies of the nephew and other boarder were never found.

Prosecutors knew they had a triple homicide on their hands. But they also feared that they could not prove first degree murder in a courtroom because neither David nor Michelle Knotek could be compelled to testify against the other.
“[This] was a classic case where the husband saw the acts of the wife, the wife saw the acts of the husband, and everyone knew we couldn’t use the testimony of either one of them,” Assistant Attorney General Brian Moran told the Post-Intelligencer. (more…)

Flawed, Suggestive Photo Lineups Resulting in Eyewitness Misidentification and Wrongly Convicted

By: Houston Criminal Defense Attorney John T. Floyd and Paralegal Billy Sinclair

The Dallas Morning News (October 2008) ran two articles written by Steve McGonigle and Jennifer Emily that linked 19 DNA exonerations to faulty eyewitness testimony. These two investigative reporters opened their series with the tragic story of Wiley Fountain who spent 15 years in the Texas prison system wrongfully convicted of rape:

“Wiley Fountain was the obvious choice among the six Polaroids police assembled for the rape victim to review.

“He was the only man wearing a dark baseball cap and light-colored warm-up suit, similar to what the attacker had on. He fit the rapist’s description ‘to a T,’ a Dallas police officer later testified. The victim was sure. Prosecutors believed her. So did the jury. But all of them were wrong.

“In September 2002, after Mr. Fountain had spent 15 years in prison, DNA testing proved his innocence. Today, he is free but homeless, scrounging for aluminum cans on the rugged streets of South Dallas.

“The story of his wrongful conviction and that of 18 others is lifting the curtain on criminal justice in Dallas County, which has led the nation in DNA exonerations since 2001. In every instance but one, a Dallas Morning News investigation found, police and prosecutors built their cases on eyewitness accounts, even though they knew such testimony can be fatally flawed.” (more…)

Enormous Mismanagement of the FLDS Case, Loss of $12 Million to Taxpayers, And an Egregious Affront to Fundamental Principles of Law

By: Houston Criminal Defense Lawyer John T. Floyd and Mr. Billy Sinclair

Since the April 2008 military-styled raid, led by the Texas Rangers and the state’s Child Protective Services, on the Yearning for Zion Ranch owned by Fundamentalist Church of Jesus Christ of Latter Days Saints (FLDS) in Eldorado, Texas, we have been consistently been critical of the methods used by law enforcement and the CPS efforts to destroy the FLDS church. These official efforts stem from allegations that some male FLDS members used religious practices to engage in “spiritual marriages” with underage teenage girls. CPS reported in August 2008 that it was still investigating 10 cases involving marriages of girls ranging in ages from 12 to 16. As we have previously reported, these investigations have already cost Texas taxpayers at least $12 million.

The Houston Chronicle reported on September 4, 2008 that the Texas Health and Human Services Commission, the parent agency of Child Protective Services, has mismanaged millions of taxpayers’ dollars. Five years ago the Texas Legislature mandated that the Commission hire private contractors to assume duties of state employees in agencies such as CPS. The Chronicle reported this effort “has been a slow-motion disaster.”

The newspaper reported that the Commission terminated its contract last year with one company, Accenture, “after [an] attempt to privatize eligibility screening for social service programs caused chaos and erroneously denied services to thousands of qualified Texans.”
A 2006 state audit was highly critical of a five-year $85 million deal the Commission made in 2004 with another company, Convergys, to provide human resources and payroll services for the more than 46,000 employees in the state agencies supervised by the Commission. The audit warned that the Commission’s supervision of the Convergys contract was lax and that this had resulted in late or incorrect paychecks being issued to employees and produced inadequate spending on technology and training programs.

The Chronicle also reported that “a return visit by the auditors this year found that payroll and management problems at the state agencies continue. Texas State Auditor John Keel reported that more than $738,192 had been mistakenly paid out to more than 1,200 former state employees after they had been terminated. Only half of those taxpayer dollars have been recovered. In addition, 43 employees were allowed to take paid emergency leave because of criminal charges, with an average length of 70 days. Nine out of 10 agency supervisors had not received required training, while nearly three-fourths of employees sampled had no performance evaluations in their files.” (more…)

By: Houston Criminal Defense Attorney John T. Floyd and Mr. Billy Sinclair

On July 23, 2008 the State of Mississippi executed Dale Leo Bishop for his involvement in the beating death of 22-year-old Marcus James Gentry. The Bishop execution was significant only because he became the third person put to death in this country who did not actually kill the victim while the actual killer received life imprisonment.

In 1998 Bishop, Gentry, and Jessie Johnson engaged in a night of heavy drinking and drug use. They ended up in Gentry’s car on an isolated dirt road near Saltillo, a community in northern Mississippi. A dispute broke out among the men leading Johnson and Bishop to attack Gentry. Johnson struck Gentry 23 times with a hammer before it lodged in the victim’s throat. Bishop was convicted because he held Gentry by the neck during the murderous assault.

Johnson was tried separately from Bishop, convicted, and received a life sentence without parole. Bishop was also convicted by a jury, but elected to have the trial judge impose sentencing. Even though Johnson admitted that he struck the fatal blows that killed Gentry, the judge nonetheless sentenced Bishop to death.

The two others cases in which the actual killer received life while the lesser participant was put to death were Steven Hatch, who was put to death in Oklahoma in 1996, and Doyle Skillern, who was put to death in Texas in 1985. (more…)

Houston Criminal Attorney John Floyd Discusses the Tragedy of the John Horn Case and the Implications of Grand Jury No Bill

It was a highly-charged emotional case from the beginning. It had all the social ingredients for stirring controversy: criminals, crime, guns, self-defense, race, and illegal immigrants. It began last November when a 64-year-old Pasadena retiree named Joe Horn saw his neighbor’s home being burglarized by two Hispanic men, Diego Ortiz and Hernando Riascos Torres, who were in the United States illegally(although Horn at the time didn’t know they were Hispanic because of their African-Columbian descent). Horn called 911 to report the crime. He told the 911 dispatcher that he was armed. The dispatcher instructed Horn to stay inside his own residence. Horn ignored those instructions, pointedly telling the dispatcher that he was going to kill the two men.

Whatever his motives, Horn left his residence armed with a shotgun. He confronted the two unarmed men as they walked between his residence and his neighbor’s residence. One of the men, according to news reports, angled in the direction of Horn, who was standing on his porch, before making a dash toward the street in front of Horn’s residence. The other Hispanic man turned away from Horn and fled across the neighbor’s front yard. Horn raised the shotgun and fired one shot that struck the man fleeing toward the street in the back, killing him instantly. Horn turned the shotgun toward the other man and fired two shots, one of which also struck the fleeing man in the back. He continued to run a short distance before collapsing dead.

The case triggered street protests in the Village Grove East subdivision where Horn lives. Those protests were led by community activists Quanell X. The community of Pasadena suddenly found itself the subject of national media attention. This web page posted four blogs (11-29-08, 12-09-07, 12-17-07, and 02-27-08) about the case and the subject of self-defense. Our website quickly discovered that the emotions in the case ran to the extreme – Joe Horn was either a “hero” for killing two “down n’ dirty” criminals or he was a cold blooded murderer who shot two men in the back as they fled.

The problem with extremes is that they never capture the essence of any controversy. They tend only to polarize people, too often along racial and cultural lines as in the Horn case. This was made evident on June 30, 2008 when a Harris County Grand Jury elected not to indict Horn for any criminal offense related to the shootings.  Both extremes were ready with the standard responses. (more…)

Houston Criminal Defense Attorney Discusses Latest Developments in FLDS case and the Beginnings of a Grand Jury Investigation

A West Texas grand jury sitting in Schleicher County heard testimony from a few of the dozens of witnesses subpoenaed to testify concerning allegations made by the Attorney General’s Office that members of the Fundamentalist Church of Jesus Christ of Latter Day Saints forces underage girls into “spiritual marriages.”

The grand jury probe stems from the April 2008 military-styled raid on the Yearning for Zion Ranch in Eldorado during which the State’s Child Protective Services and law enforcement authorities, including the Texas Rangers, forcefully seized custody of the 467 children – two-thirds of whom were five years of age or younger – and placed them in state foster care. CPS officials immediately began issuing irresponsible public statements and leaking erroneous information to the media that dozens of the teenage girls had been impregnated through forced spiritual marriages, had been subjected to other forms sexual abuse, and that other children had been subjected to physical abuse.

During hearings conducted in mid-April before San Angelo County District Court Judge Barbara Walhter, CPS paraded into court with a number of witnesses carrying volumes of documents who could not substantiate a single incident of either sexual or physical abuse. That a state agency would conduct itself in such an incompetent manner was disturbing enough but that a state court judge would permit its court to be turned into a carnival venue for such a spectacle was nothing short of astonishing.

Two courts of review - the Third Circuit Court of Appeals and the Texas Supreme Court – agreed. They reversed Judge Walhter’s ruling that upheld CPS’ decision to place the children in state foster care. The two appellate courts in May ordered the FLDS children returned to their parents. The decisions were not only a rebuke of CPS’ handling of the case but they were also a reasonable, rational reinforcement of the natural parent-child relationship so honored in the State of Texas throughout its storied history. (more…)